688 F.3d 619
9th Cir.2012Background
- Villages claim non-exclusive aboriginal hunting and fishing rights on parts of the Gulf of Alaska Outer Continental Shelf (OCS).
- OCS fisheries are regulated by the Secretary; 1993 IFQ regulations restrict halibut/sablefish harvest; prior regime had no vessel cap.
- Initially, IFQs were allocated to those owning/leasing vessels used to catch halibut/sablefish between 1988-1990; subsistence rules expanded later.
- District court dismissed the complaint; Villages appealed, contending federal common law and Indian Non-Intercourse Act rights were unaccounted for.
- Court previously remanded to determine whether aboriginal rights exist on the OCS, assuming paramountcy does not abrogate them; district court found no exclusive aboriginal rights.
- En banc review affirmed that aboriginal rights were not proven; court concluded exclusivity and continuous use were not established by a preponderance of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether aboriginal rights exist on the OCS. | Chugach proved exclusive continuous use. | Paramountcy and lack of exclusivity defeat aboriginal rights. | Chugach failed to prove exclusivity; no aboriginal rights established. |
| Whether aboriginal rights can coexist with federal paramountcy on the OCS. | Aboriginal rights may coexist with paramount federal interest. | Eyak I precludes coexistence of aboriginal rights with paramountcy. | Paramountcy does not bar coexistence; Eyak I misapplied law; still no evidence of exclusivity. |
| Proper legal standard for exclusivity under Sac & Fox and related cases. | Exclusivity can be established by exclusive use and occupancy where others lack evidence of use. | Exclusivity requires power to exclude others or proof of exclusive dominion. | Exclusivity can be shown by exclusive use without proof of exclusion power where no others used the area. |
| Did the district court apply the Sac & Fox standard correctly on remand? | District court erred by requiring exclusionability rather than exclusive use. | District court properly weighed evidence and concluded no exclusive use. | Remand warranted to apply Sac & Fox properly; ultimately affirmed district court. |
Key Cases Cited
- Sac & Fox Tribe of Indians of Okla. v. United States, 383 F.2d 991 (Ct.Cl.1967) (establishes actual, exclusive, continuous use and occupancy for aboriginal title)
- United States v. Pueblo of San Ildefonso, 513 F.2d 1383 (Ct.Cl.1975) (exclusive use requires exclusion of other tribes when present)
- Osage Nation of Indians v. United States, 19 Ind. Cl. Comm. 447 (1956) (exclusivity shown where no evidence of other tribes using the area)
- Zuni Tribe of N.M. v. United States, 12 Cl.Ct. 607 (1987) (exclusive use shown despite peripheral use by others; boundaries matter)
- Caddo Tribe of Okla. v. United States, 35 Ind. Cl. Comm. 321 (1975) (exclusive use can exist where no evidence of other occupancy within area)
- Muckleshoot Tribe v. United States, 3 Ind. Cl. Comm. 669 (1955) (liberal approach to evidence due to antiquity of claims)
- Gambell III, 869 F.2d 1273 (9th Cir.1989) (aboriginal rights may exist concurrently with paramount federal interest)
- Eyak I, 154 F.3d 1090 (9th Cir.1998) (paramountcy doctrine potentially bars aboriginal rights on the OCS)
- Village of Gambell v. Hodel, 869 F.2d 1277 (9th Cir.1989) (Gambell III holds coexistence of aboriginal rights and paramountcy)
- Oneida II, 470 U.S. 226 (1985) (aboriginal title is good against all but the sovereign; federal extinguishment requires plain intent)
- Santa Fe Pacific R.R. Co., 314 U.S. 339 (1941) (aboriginal rights do not require treaty or statute to exist; can be implied occupancy)
- Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) (aboriginal title is occupancy granted and protected by sovereign)